Troubling decision in matter involving anonymous bloggers

A financial consulting company has filed a lawsuit in federal court in Colorado alleging that certain anonymous web users have posted defamatory statements about the plaintiff on blogs and in message forums. The plaintiff asked the court for an order permitting it to serve subpoenas (apparently to the host and/or the ISP) to uncover the identity of the anonymous bloggers.

With essentially no analysis of the rights of the “John Doe” defendants, the court ordered that the discovery be permitted. This ruling is troubling for a couple of reasons.

There’s an important potential First Amendment issue here over which the court appears to have run roughshod. Each one of us has the constitutional right to speak anonymously. And courts need to be careful not to breach that right when asked to order that anonymous speakers be identified. Responsible courts give this constitutional interest the appropriate treatment by requiring that a certain showing by the plaintiff be made before the unmasking is permitted. See this page for a whole host of court opinions addressing that balancing test.

If the court went through that analysis in this case, it sure does not show up in the opinion.

One big troubling aspect is that the court compared the present situation to one in an earlier copyright infringement case brought by the RIAA. That comparison is not quite valid. In copyright cases, unlike defamation cases, the nature of what the plaintiff pleads is necessarily different — you have to plead a valid copyright registration as half of your prima facie case of copyright infringement. That means you already have the Copyright Office’s stamp of approval, so to speak, that the rights you are asserting are valid. In defamation cases there’s nothing equivalent to a copyright registration certificate. The plaintiff just says the offending statements are defamatory, and that has to be proven later. Simply stated, a claim for copyright infringement, properly pled, will be stronger, and will tend to suggest more clearly, that something actionable has occurred, than will mere assertions of defamation.

Apart from cursorily comparing this case to an unmasking in a copyright infringement case, the court does not mention the potential First Amendment concern of the anonymous defendants, nor does it mention the strength of the plaintiff’s allegations of defamation. The court simply says, “[b]ecause it appears likely that Plaintiff will continue to be thwarted in its attempts to identify Defendants without the benefit of formal discovery mechanisms, the court finds that Plaintiff should be permitted to conduct expedited discovery.” Such a reasoning would suggest anyone sued as a John Doe for defamation should be unmasked pretty much as a matter of course. That’s dangerous.

Couldn’t agree with you more Evan, and as a citizen of Halifax and a regular user/poster on the site belonging to the publication that was served there in the case referenced by Donna, I am a lot more circumspect about anything critical I might post there.

I agree that this order is disturbing. There was no balancing of the interest of the plaintiff against the First Amendment rights of the defendants. Looking at the motion via PACER, there was little effort to establish a prima facie case for defamation.

The bar needs to be set higher in these cases. The courts should have a responsibility to protect the right to speak anonymously until a plaintiff makes a better showing than was made in this case.

I am by no means a supporter of the adventurous legal theory that anonymous posting is a constitutional right. The Constitution guarantees your right – in your true identity – to speak what you will, but you are then also responsible for what you say, because people then know who you are. The intent of the Constitution is not to exculpate people from responsibility for their actions — or their speech. My internet experience is that anonymous posters post anonymously in order to escape personal responsibility for their — in some cases – intentionally libelous – actions — i.e. for their speech. The very fact that your own blog REQUIRES an email address of comment posters easily proves my point. If you are such a great supporter of anonymity, why not permit it at your OWN blog?? The fact is that many an anonymous poster surely has his or her own website and blog — where, you can be sure, anonymous comments are not permitted and are deleted, for good reason.

Andis – thanks for your comment. I think your internet experience is quite valid and is probably shared by many, namely, that people who post anonymously do so to escape responsibility for their actions. And I’d suggest that that’s the very thing that makes the right to anonymity so important. In environments where dissent or otherwise unpopular speech would be met with cruel force from those in power, the ability to evade “responsibility” ensures that the speaker can speak without fear of retribution. Courts have routinely recognized this sentiment, hearkening to the actions of our nation’s founders, as they went about the business of anonymous pamphleteering, e.g., under the nom de plume “Publius”: http://en.wikipedia.org/wiki/Federalist_Papers

While I would agree with Evan in general regarding the importance of recognizing the First Amendment right to anonymous speech for dissenty, he appears to be grossly misstating or failing to understand this claim. I pulled it off PACER like Bill, and the underlying claims are all exclusively based on Lanham Act and state law trade libel claims, i.e., unprotected commercial speech. Evan seems to have missed the point entirely, or am I missing something? Evan recognizes the “Copyright Office’s Stamp of Approval”, which we all know is a pretty low threshold to obtain, but completely ignores the USPTO’s stamp of approval for the underlying trademarks here. This looks like an interesting one to follow from here in Chicago, but it looks like the original column is adding 2+2 and coming up with 3 because that is a more interesting number.

Cyberguy — You’re right, trade libel is unprotected speech. But merely alleging that someone has engaged in trade libel, especially under the liberal federal pleading standards, does not alone make the alleged speech unprotected. The unprotected nature of the speech of course has to be proven later. No one (including me, even though I appear to fail to understand (ouch!)) will argue that anonymity should serve as an impenetrable shield to responsibility for tortious speech.

This is a necessary corollary to the rule prohibiting the sponsors of blogging sites from being held liable. People who use the sites to post comments are the only ones who can be sued if they post a defamatory statement. If the person who alleges damages caused by the statement is to be able to prove his case and secure a judgment, he has to know who the poster is.

There is no compelling state interest to protect anonymous “everyday” speech, i.e. as opposed to “political” speech. We can permit it by law, yes we can, but not as a constitutional right.

Due to the fact that libelous or maliciously false postings online have an indefinitely long life in the digital age — the libelous newspaper clipping wandered quickly into the archives in the good old days — it is my argument that much stricter interpretations of free speech are required by the courts in our era. See http://lawpundit.blogspot.com/2010/05/right-to-anonymity-and-free-speech.html

Otherwise, you are creating a society where a lot of people get the idea that they are not responsible for their actions as long as they put a mask on their head, a philosophy, which, in the long term, will breed disaster. The acceptance of personal responsibility is the hallmark of a successful country with law-abiding cititzens. When that value breaks down – you get what the U.S.A. already has in part — financial chaos (e.g. Enron, the credit swap scams), a breakdown of the social system, increased lack of respect for law and order, etc., all engendered by the sentiment that no one is responsible for anything, only the other guy is.

So who then should the force of the law fall heaviest on, the anonymous peasants who would like to speak out or the many white-collar criminals who run publicly listed corporations more for their own benefit than for their stockholders, and will practice criminal frauds, etc, on their consumers in the process?

I am sure our society can find a happy medium between people who prefer to write annonymous speech and those who like to bask in the sunshine of their communication skills.

In the history of the written word, we have enjoyed literature (poem, articles, books) by “annonymous” writers. Perhaps, they were excruciatingly shy but had something valid and creative to share. Perhaps, they wanted no attention from family members or pesky neighbors, but wanted to express themselves. Maybe, they had mental issues and hate attention but want to reach out through this new medium—who knows.

There in lies the balance— the mode of how it is said: annonymity, is not as much the issue as is the content (hate speech etc). Those who write without desiring the spot light for harmless speech should not be denied their tiny, powerless voice and have the forum. However, once the speech crosses some societally determined threshold, the aggrieved party should be allowed to unmask their tormentor. This would carve exceptions out of free speech—to allow for responsible speech, but not attack an annonymous mode of free speech all together.

As a follow up to my last comment, I would submit this, which constitutes my horrible experience
with an OSP and a band of vigilantes and how they supported woman from Scotland.
This article describes what a group did for the sake of this jilted woman that I had an affair with… note how they use censorship and block talk back. http://thetoylanderstpi.com/The_Toylanders/google…
And this story is about the woman herself using soundclick.com where the isp has a vested interest in her smears of me, done in the form of perverted recordings. This isp, for that reason is not protected by FCA, as it's lead support person, resents my criticism of her for allowing something similar
that the woman did in 2008 and I wrote about it.That 2008 example has a hyperlink on this blog. And the blog has a full description of what this woman is doing on this service now, how and why the service is helping her, as well as some history of various cybercrimes.
Both are in violation of federal communications act. And therefore they are in violation of federal law
which states the internet cannot be used to harass, annoy threaten or abuse, anonymously. The key word being Anonymously, as anonymous campaigns of personal destruction block the constitutional right of remedy. Note also how I attach my real name to all that I say. http://elainesmithstonehaven.blogspot.com/
What I submit to you is the worst example of what anonymous internet activity can do. And it is only the worst examples that most people would seek remedy for…

Evan Brown is an attorney in Chicago helping businesses and individuals identify and manage issues dealing with technology development, copyright, trademarks, domain names, software licensing, service agreements and other matters involving the internet and new media.

Evan is a partner in the law firm of Much Shelist, P.C. He is an adjunct professor of law at Chicago-Kent College of Law, and is a Domain Name Panelist with the World Intellectual Property Organization (WIPO).